Missed chance? Why SC allowed Torre de Manila to resume construction

MANILA, Philippines – The Supreme Court en banc, with a vote of 9-6, decided on April 25 to lift the temporary restraining order (TRO) on Torre de Manila and allow its construction to continue despite impassioned protests by heritage advocates.

Torre de Manila, dubbed as national photobomber, is in the background of the Jose Rizal shrine in Luneta. Its compliance to zoning and building rules was also mentioned during oral arguments before the High Court in 2015.

The SC said "there is no law that prohibits the construction of the challenged Torre de Manila." 

Those who voted in favor of the lifting of the TRO were Chief Justice Maria Lourdes Sereno, Senior Associate Justice Antonion Carpio, and Justices Presbitero Velasco Jr, Mariano del Castillo, Lucas Bersamin, Bienvenido Reyes, Estela Perlas-Bernabe, Marvic Leonen, and Noel Tijam.

Those who voted against it were Justices Francis Jardeleza, Teresita de Castro, Peralta, Alfredo Benjamin Caguioa, Jose Mendoza, and Samuel Martires.

What did the justices say? Let's take a look at their concurring and dissenting opinions.

No law

Carpio was the ponente of the SC decision. In his 28-page ruling, Carpio said that nothing in the law prohibits the construction of Torre de Manila just because it is in the sightline of the Rizal monument in Luneta.

"What is not expressly or impliedly prohibited by law may be done except when the act is contrary to morals, customs, and public order," Carpio said, adding that there is no proof that Torre de Manila brings "harm, danger, or hazard to the community."

Carpio said that even former solicitor general Florin Hilbay, who argued for petitioners Knights of Rizal, cannot directly say that Torre de Manila violates the monument's physical integrity, "except only to say that when you stand in front of the Rizal Monument, there can be no doubt that your view is marred and impaired."

"Obviously, this Court cannot apply such a subjective, non-uniform standard that adversely affects property rights several kilometers away from a historical sight or facility," Carpio wrote. (READ: TIMELINE: The Torre de Manila case)

City of Manila knows better

Torre de Manila was able to secure what is called a "variance" or exemption to the zoning laws issued by Manila's planning and development office, and later by the Manila Zoning Board of Adjustments and Appeals (MZBAA).

Torre needed the exemption because Ordinance No. 8119 of the Manila zoning ordinance states that if the building is within the university cluster, where Torre de Manila stands, it should follow a floor-area ratio of 4. Torre’s building plans indicate it has a floor-area ratio of 7.79.

For the SC majority, if the MZBAA allows it, why shouldn't they?

"The Court cannot substitute its judgment for that of said officials who are in a better position to consider and weigh the same in the light of the authority specifically vested in them by law," Carpio wrote.

The majority ruled: "Neither the majority nor minority opinion in this case has found that the City of Manila committed grave abuse of discretion in issuing the permits and licenses to DMCI."

DMCI is the Torre de Manila developer.

It's true that the minority – the 6 justices who voted against Torre – did not say that the city government abused its discretion. Or at least not yet. For Jardeleza, one of the dissenters, the Court should not have, at this stage, ruled with finality that there was no abuse of discretion.

Which is why Jardeleza would have wanted to remand the issue back to the City of Manila so it could re-evaluate the permits, to "conduct a hearing, receive evidence, and decide compliance with the foregoing standards/requirements under Ordinance No. 8119."

Variance

It was established during the oral arguments that granting a variance or an exemption is not something uncommon when it comes to building and zoning rules.

However, Jardeleza pointed out in his 51-page dissenting opinion that the grant of a variance or exemption, must satisfy 3 criteria: 

1. Conforming would cause undue hardship on property owner due to physical conditions of the property which is not self-created (e.g topography, shape, etc)

2. The variance is the minimum deviation necessary to permit reasonable use of the property

3. The variance will not alter the physical character of the district/zone

"Significantly, none of the documents submitted by DMCI show compliance with any of the foregoing qualifications," Jardeleza said.

According to Jardeleza, the majority ruling only took into consideration the "traditional" definition of public safety, health, convenience, and welfare in allowing the construction of Torre de Manila.

Jardeleza quoted several SC decisions, some from the US, to justify the belief that even aesthetics can be considered as a public safety and welfare concern.

Jardeleza also pointed out that in the evolution of town planning principles, historical preservation and aesthetics have been considered public welfare interests and that is precisely why there are zoning laws.

While Jardeleza recognizes the majority ruling that there is no specific law barring the construction only on the basis of it being in the background of the Rizal Monument, he said "there is nevertheless an existing legislation implementing the constitutional mandate of heritage conservation."

"Ordinance No. 8119 provides for a clear and specific duty on the part of the City of Manila to regulate development projects insofar as these may adversely affect the view, vista, sightline or setting of a cultural property within the city," Jardeleza said.

Rizal didn't even want statue

Carpio said that the Knights of Rizal had attempted to do in the past what it condemns Torre de Manila for doing now.

In the mid 1950s, Carpio said, the Knights of Rizal proposed to build a national theatre standing 29.25 meters high at a spot 286 meters away from the monument. The national theatre, Carpio said, would have "dwarfed the 12.7 meter high Rizal Monument."

"It is basic principle that one who seeks equity and justice must come to court with clean hands," Carpio said.

Anyway, according to Carpio, Jose Rizal would not have wanted the kind of grand commemoration that prohibits the blocking of his monument's sightline.

"Before his death, Rizal wrote a letter to his family. He asked for a simple tomb, marked with a cross and a stone with only his name and the date of his birth and death; no anniversary celebrations; and interment at the Paang Bundok (now, the Manila North Cemetery). Rizal never wanted his grave to be a burden to future generations," Carpio said.

Carpio even cited historical accounts that Rizal wanted to die facing the sun in the East. "That Rizal's statue now stands facing West towards Manila Bay, with Rizal's back to the East, adds salt to the wound," Carpio said.

Find another angle

Velasco, in his concurring opinion, said the solution to the problem is as simple as moving your camera when taking the photo of the Rizal Monument. 

"From my own personal observation, the visibility of Torre de Manila building in the backdrop of the Rizal Monument is highly dependent on the distance and angle from which the monument is viewed," Velasco said in his 13-page opinion.

Besides, Leonen said in his separate concurring opinion, there are more ways to honor Rizal than a nicely-framed photograph of his monument.

"Rizal was a Filipino, whose principles and convictions have them the courage to speak truth to power no matter how fatal the consequences....It is this courage and this humility that we should remember from Rizal's life. These values should be lived. They should persist and survive beyond the frame of a bad photograph," Leonen wrote.

For Jardeleza, however, it was a missed opportunity for the High Court.

He wrote: "We had the unique opportunity to give the value of heritage conservation, involving as it does the preservation of fragile and vulnerable resources, all the breathing space to make its case. This Decision, however, seems to have achieved the complete opposite." – Rappler.com

Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email lian.buan@rappler.com or tweet @lianbuan.

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